Citation Nr: 1803110 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 13-13 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 40 percent for a lumbar spine disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include depression. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to service connection for a right knee disability. ORDER A rating in excess of 40 percent for a lumbar spine disability is denied. FINDING OF FACT The Veteran's lumbar spine disability has not been manifested by ankylosis, intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, or any associated neurological impairment. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, DCs 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1976 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran testified at a Board hearing before the undersigned. In June 2015, the Board remanded this matter for further evidentiary development. The Board recognizes that although the lumbar spine examinations do not provide range of motion testing in compliance with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), the Board finds that it may nonetheless proceed to adjudication of the claim. This is because a remand for range of motion testing of the lumbar spine in compliance with Correia would not result in a higher rating, as a rating in excess of 40 percent can only be granted based on a finding of ankylosis of the thoracolumbar spine. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14 (2016); Esteban v. Brown, 6 Vet. App. 259 (1995). Schedular ratings for disabilities of the spine are provided by application of The General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a (2017). The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a (2017). Under the General Rating Formula for Diseases or Injuries of the Spine, the diagnostic code criteria pertinent to lumbar spine disabilities provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine (2017). A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine (2017). Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5) (2017). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (1) (2017). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2017). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2017). Private and VA treatment records for 2008 reflect multiple complains of low back pain and left lower extremity pain with diagnoses of left L5 radiculopathy, lumbar radiculopathy and foraminal narrowing. The Veteran initially underwent VA examination in January 2009. The Veteran had limitation to range of motion with pain on active range of motion; however, there was no ankylosis of the lumbar spine. An MRI conducted in conjunction with the VA examination reflected mild L3-4 and L4-5 disc bulges without spinal canal or neuroforaminal narrowing and multilevel bilateral facet degenerative joint disease. The Veteran was diagnosed with degenerative disc disease and degenerative arthrosis of the lumbar spine. A July 2009 VA treatment record shows that in regards to any lumbar radiculopathy, there was no evidence of cauda equina upon physical examination except for strain. A June 2011 EMG conducted during VA treatment revealed there was no definite electrophysiological evidence of peripheral neuropathy or radiculopathy. The Veteran was advised that his EMG was completely normal and no neuropathy or lumbar radiculopathy was found. He was to be referred to physical therapy if agreeable. A later June 2011 x-ray taken upon VA treatment reflects transitional L6 vertebral body with pseudoarticulation of the left transverse process with the sacrum and mild-moderate degenerative disc disease and facet arthropathy most prominent at L5-S1 in which there was mild narrowing of the osseous neuroforamen. The Veteran underwent VA examination in July 2011. Limitation to range of motion of the spine, with pain, was noted on examination, but there was no ankylosis of the lumbar spine. Sensory examination findings were normal for the bilateral lower extremities, as was muscle tone. Muscle atrophy was not noted. The diagnoses were degenerative arthrosis and degenerative disc disease of the lumbar spine. The examiner indicated that the effects of the Veteran's lumbar spine disability on the Veteran's usual daily activities were that he was no longer able to perform any lifting, pushing, pulling chores and no longer could mow the lawn. During the Veteran's March 2015 Board hearing, he testified that he had shooting or tingly pain in his lower extremities. He explained that the pain shot from his buttocks down to his legs. Pursuant to the June 2015 Board remand, the Veteran was afforded a VA examination in April 2017. The Veteran was diagnosed with lumbosacral strain. He reported having chronic low back pain and bilateral intermittent radiating pain in both lower extremities. He further reported having multiple other illnesses that interfered with his ability to bend at waist, stand, and walk. Pain was noted on forward flexion and extension. There was evidence of pain with weight bearing and there was tenderness to palpation generally in the lower lumbar area. The examination showed no guarding or muscle spasms of the lumbar spine. The Veteran did not have ankylosis or IVDS of the lumbar spine. The examiner noted that the EMG testing in June 2011 revealed no significant evidence of either neuropathy or radiculopathy. Upon current examination, the examiner found that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner specifically noted that he was generally debilitated due to multiple chronic illnesses and that such made the Veteran's lumbar spine examination poorly reliable for rating purposes. In order to warrant a disability rating in excess of the current 40 percent rating, there must be evidence of either ankylosis of the spine, or IVDS treated by bed rest prescribed by a physician. Neither of these symptoms is present. The medical evidence clearly indicates the Veteran does not have ankylosis or IVDS of the spine treated with prescribed bedrest at any time during the course of the appeal. Therefore, the Board finds that a rating in excess of 40 percent during the period on appeal is not warranted. The Board has considered the provisions of §§ 38 C.F.R. 4.40 and 4.45, but as the Veteran already has the highest available rating based on restriction of motion, these provisions are not for application. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) Finally, the Board does not find any associated neurological impairment that would warrant a separate rating. The Board acknowledges the Veteran's complaints of lower extremity symptoms; however, the Board finds that the weight of the evidence indicates that the Veteran does not have radiculopathy. While private treatment records in 2008 reflect a report of left L5 radiculopathy, a June 2011 EMG conducted during VA treatment revealed there was no definite electrophysiological evidence of peripheral neuropathy or radiculopathy. Also, during the July 2011 VA examination, sensory examination findings were normal for the bilateral lower extremities, as was muscle tone. Furthermore, pursuant to the June 2015 Board remand, the April 2017 VA examiner was asked to evaluate the presence of any radiculopathy related to the service-connected lumbosacral disability, to include consideration of past medical evidence indicating the presence of radiculopathy. In doing so, the April 2017 VA examiner found that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. Thus, a separate rating is not warranted for any associated neurological impairment. Accordingly, the Board concludes that the preponderance of the evidence is against the assignment of a disability rating in excess of 40 percent for the period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). REMAND An August 2017 rating decision denied reopening a claim of entitlement to service connection for depression, entitlement to service connection for a left knee disability, and entitlement to service connection for a right knee disability. The Veteran filed a September 2017 notice of disagreement (NOD). However, the requisite statement of the case (SOC) has not been issued in response. Under these circumstances, an SOC should be issued and the Board is required to remand these issues. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board finds that the claim for TDIU is inextricably intertwined with the claims being remanded. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Because adjudication of these claims will potentially affect the TDIU claim, adjudication of the Veteran's TDIU claim is deferred. Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case for the issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include depression; entitlement to service connection for a left knee disability; and entitlement to service connection for a right knee disability. 2. Thereafter, readjudicate the claim for TDIU. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel Copy mailed to: Shannon L. Brewer, Attorney at Law Department of Veterans Affairs